What was the outcome of Tenancy Tribunal case 4619011?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4619011?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4619011?

The dispute type was not classified.

Where can I read the official tribunal order for case 4619011?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9270964-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4619011?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4619011?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4619011?

The dispute type was not classified.

Where can I read the official tribunal order for case 4619011?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9270964-Tenancy_Tribunal_Order.pdf.

40A Kings Road, Mount Roskill, Auckland 1041 Tenancy Tribunal Case 4619011 — Tenancy dispute

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The Bond Centre is to pay the bond of $744.60 (5207131-008) to Andrew Michael O'Brien immediately.
The landlord’s application is dismissed.

Reasons

Both parties attended the hearing.
The landlord has claimed compensation for damage caused to a copper downpipe at the property.
She has provided a quote for $724.16 for this work to be undertaken.
This tenancy commenced in August 2016 and ended in June 2023, a tenancy of almost 7 years.
Some of the bond has been refunded to the tenant but there is a balance of $744.60 which has remained at the Bond Centre pending resolution of this dispute. The Law
I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the landlord) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
For a landlord to succeed in a claim for damage to the premises, they must prove that the damage occurred during the tenancy and is more than fair wear and tear. See section 40(2)(a) and 49B Residential Tenancies Act 1986 (“the Act”).
If this is established, to avoid liability the tenant must prove they did not carelessly or intentionally cause or permit the damage. The Events
At the hearing the landlord said that when the tenants moved into the premises in 2016 there was no damage to the downpipe.
However, no photographs were provided to support that contention.
She said that sometime in 2021 during a routine inspection she noticed a dent in a downpipe in the backyard area and asked the tenants what had happened. According to the landlord, the tenants said they did not know but that it might possibly have been their kids kicking a ball around in the backyard. The landlord she said that she saw sports equipment in the backyard and she invites me to infer that was the cause of the dent.
At the end of the tenancy, the landlord said that as the dent had not been fixed, she again raised this with the tenants. She said that the tenants did not take responsibility for the damage.
She accepts that despite the tenants saying they did not know what happened, they nevertheless offered her $150.00 at the end of the tenancy as a goodwill gesture to avoid the dispute. She accepts that she declined this offer as she wanted to use copper which was more expensive than what was proposed by the tenants.
The tenant largely accepts the recounting of events however he says that it was not he who suggested that the damage might have been caused by kids kicking the ball around. He said that the landlord suggested this as a possible cause in 2021 and they simply accepted that could be a possibility.
The tenant also said that, while not professing to be an expert in metallurgy, the dent appeared to be straight rather than rounded in shape and therefore it did not seem likely that it was caused by a ball.
In reply, the landlord said that the person who assessed the damage and provided the quote said that copper is a soft metal and that it could easily have been caused by a ball. He also apparently said that if it was repaired it could happen again if the kids were playing around. Findings
I am not sure that the opinion of the person who provided the quote assists the landlord’s case. If anything, it confirms that copper is a soft metal – so any number of things might have caused the dent in the pipe.
This property was built in 1989. The copper downpipes appear to be original to the house.
Without clear evidence as to the state of the downpipe prior to the tenancy commencing, I am doubtful that this damage even occurred during the tenancy. That means that the landlord may not surmount the first hurdle in a claim for damage.
Even if the landlord was able to show the damage did occur during the tenancy, in the photographs provided there are numerous marks and scratches evident on the pipe that are typical of normal wear and tear.
The dent that the landlord is focused on is indeed present, but there is simply no evidence as to what caused it.
I observe that in the photograph provided there is a loose rectangular piece of concrete located at the bottom of the pipe. For all anyone knows, that may be the cause of the dent. It does seem roughly consistent with its size and shape.
However, that is merely speculation.
Unfortunately, that is the point.
The landlord can at best only speculate as to the cause of the damage. In a period of five years (which is the time between when the landlord claimed there was “no damage” until 2021, when the damage was first noticed) there would have been numerous things, including debris during weather events, that might have caused the dent.
Fair wear and tear has been defined as the deterioration of premises due to both reasonable use and ordinary operation of natural forces, reasonable conduct on the part of the tenant being assumed. The amount of damage is not relevant. See discussion in Accessible Properties New Zealand Ltd v McKeefry [2019] NZTT 4114629, 4169403.
In this case, the landlord has not satisfied me that it is more likely than not that the dent in the pipe was caused by anything other than fair wear and tear. Property maintenance is ultimately the responsibility of the landlord.
The claim must therefore be dismissed.
I must also therefore order the Bond Centre to refund the balance of the bond to the tenant. J R Smith 08 August 2023

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The Bond Centre is to pay the bond of $744.60 (5207131-008) to Andrew Michael O'Brien immediately.
The landlord’s application is dismissed.

Reasons

Both parties attended the hearing.
The landlord has claimed compensation for damage caused to a copper downpipe at the property.
She has provided a quote for $724.16 for this work to be undertaken.
This tenancy commenced in August 2016 and ended in June 2023, a tenancy of almost 7 years.
Some of the bond has been refunded to the tenant but there is a balance of $744.60 which has remained at the Bond Centre pending resolution of this dispute. The Law
I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the landlord) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
For a landlord to succeed in a claim for damage to the premises, they must prove that the damage occurred during the tenancy and is more than fair wear and tear. See section 40(2)(a) and 49B Residential Tenancies Act 1986 (“the Act”).
If this is established, to avoid liability the tenant must prove they did not carelessly or intentionally cause or permit the damage. The Events
At the hearing the landlord said that when the tenants moved into the premises in 2016 there was no damage to the downpipe.
However, no photographs were provided to support that contention.
She said that sometime in 2021 during a routine inspection she noticed a dent in a downpipe in the backyard area and asked the tenants what had happened. According to the landlord, the tenants said they did not know but that it might possibly have been their kids kicking a ball around in the backyard. The landlord she said that she saw sports equipment in the backyard and she invites me to infer that was the cause of the dent.
At the end of the tenancy, the landlord said that as the dent had not been fixed, she again raised this with the tenants. She said that the tenants did not take responsibility for the damage.
She accepts that despite the tenants saying they did not know what happened, they nevertheless offered her $150.00 at the end of the tenancy as a goodwill gesture to avoid the dispute. She accepts that she declined this offer as she wanted to use copper which was more expensive than what was proposed by the tenants.
The tenant largely accepts the recounting of events however he says that it was not he who suggested that the damage might have been caused by kids kicking the ball around. He said that the landlord suggested this as a possible cause in 2021 and they simply accepted that could be a possibility.
The tenant also said that, while not professing to be an expert in metallurgy, the dent appeared to be straight rather than rounded in shape and therefore it did not seem likely that it was caused by a ball.
In reply, the landlord said that the person who assessed the damage and provided the quote said that copper is a soft metal and that it could easily have been caused by a ball. He also apparently said that if it was repaired it could happen again if the kids were playing around. Findings
I am not sure that the opinion of the person who provided the quote assists the landlord’s case. If anything, it confirms that copper is a soft metal – so any number of things might have caused the dent in the pipe.
This property was built in 1989. The copper downpipes appear to be original to the house.
Without clear evidence as to the state of the downpipe prior to the tenancy commencing, I am doubtful that this damage even occurred during the tenancy. That means that the landlord may not surmount the first hurdle in a claim for damage.
Even if the landlord was able to show the damage did occur during the tenancy, in the photographs provided there are numerous marks and scratches evident on the pipe that are typical of normal wear and tear.
The dent that the landlord is focused on is indeed present, but there is simply no evidence as to what caused it.
I observe that in the photograph provided there is a loose rectangular piece of concrete located at the bottom of the pipe. For all anyone knows, that may be the cause of the dent. It does seem roughly consistent with its size and shape.
However, that is merely speculation.
Unfortunately, that is the point.
The landlord can at best only speculate as to the cause of the damage. In a period of five years (which is the time between when the landlord claimed there was “no damage” until 2021, when the damage was first noticed) there would have been numerous things, including debris during weather events, that might have caused the dent.
Fair wear and tear has been defined as the deterioration of premises due to both reasonable use and ordinary operation of natural forces, reasonable conduct on the part of the tenant being assumed. The amount of damage is not relevant. See discussion in Accessible Properties New Zealand Ltd v McKeefry [2019] NZTT 4114629, 4169403.
In this case, the landlord has not satisfied me that it is more likely than not that the dent in the pipe was caused by anything other than fair wear and tear. Property maintenance is ultimately the responsibility of the landlord.
The claim must therefore be dismissed.
I must also therefore order the Bond Centre to refund the balance of the bond to the tenant. J R Smith 08 August 2023

Tenancy Tribunal case 4619011 — Tenancy dispute at 40A Kings Road, Mount Roskill, Auckland 1041

At a glance

Claims & awards

Tenancy Tribunal case 4619011 — Tenancy dispute at 40A Kings Road, Mount Roskill, Auckland 1041

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions